Thursday, December 20, 2007

Lawsuit Breakdown: Jurisdiction in the Rape Claim Investigation

[The series Lawsuit Breakdown will attempt to highlight the main points of the lawsuit filed on 12/18/07 (part 1, part 2 and part 3) by attorneys for Ryan McFayden, Matt Wilson and Breck Archer with a focus on Duke University's involvement in the scandal.]

The revelation in what we will call the Ekstrand lawsuit, henceforth, that the investigation of Crystal Mangum's false rape claims was not within the jurisdiction of the Durham Police Department, but instead the DukeUniversity Police Department seems to be an enormous one, and the implications of this revelation are extensive indeed. The assertions made regarding jurisdiction (not yet referring to the alleged conspiracies, mind you) seem to be easily verifiable, and it will be interesting to see if the defense challenges them.

The lawsuit seems to make two key points regarding the matter of jurisdiction:

1. The Duke University Police Department had Jurisdiction2. ALL of the defendants conspired to publicly and privately conceal the fact of the Duke Police Department's "jurisdictional obligation" (p. 4)

1. JurisdictionThe former point seems easily provable, and the suit appears to do so citing both legislation and precedent. The suit explains that "the Duke Police Department had original, primary, and continuing authority to investigate Crystal Mangum's false accusations from March 14, 2006 through January 12, 2007" (p. 33). The grounds for this authority are that the residence at 610 N. Buchanan, the site of the alleged rape which had been purchased by Duke University roughly two weeks prior to the alleged incident, was property of Duke University. In accordance with North Carolina state law enacted in 2003 and amended in 2004, the Duke police have and did have "primary jurisdiction over all properties owned or controlled by Duke University, regardless of location" (p. 36).

Not only does the suit establish the legal authority of the Duke Police Department, but Ekstrand further demonstrates that "Durham and Duke Police Departments had an established practice of strictly dividing cases according to the jurisdiction allocation agreement" (p. 37). The DUPD "was required to-and did- initiate and conclude investigations" (p. 37) of crimes alleged on Duke property regardless of location and regardless of the severity of the reported crimes including sexual assault and rape. The Duke Police handled reports of 22 forcible sex offenses and rapes between 2003 and 2005. Assaults alleged to have occurred everywhere from 2100 DUMC North Hospital in 2005 to Koehane dormitory and 2017 Yearby Street in April and July of 2006, respectively, both after the false rape claims of Mangum, were handled entirely by Duke Police. Similarly, in September of 2006 the Duke Police handled a report of Breaking or Entering of a Motor Vehicle and Injury to Personal Property reported at 704 N. Buchanan Blvd, a residence that became Duke property in the very same transaction in which Duke acquired 610 N. Buchanan, the site of the alleged rape.

SignificanceThe essence of this first point, the matter of jurisdiction, is that the Duke University Police Department serves as an agency for its own jurisdiction (Duke owned property) in every way that the Durham Police Department serves its jurisdiction, the City of Durham. The fact that the Duke Police had jurisdiction in this matter poses a number of problems for Duke, the first being that Duke is therefore likely responsible for the conduct of Durham police. The second problem is that it means the entire time, from March 14, 2006 to January 12, 2007, the Duke police and indeed Duke had the power to put an end to the extraordinary abuses of the police investigation. Moreover, this revelation puts the lie to every statement Dick Brodhead and other university agents made claiming there was nothing they could do.

All of this looks much worse for Duke in light of the second point, the allegations of conspiracy to conceal jurisdiction.

2. Conspiracy

"After Mangum’s allegations became a national media story, the Duke University Defendants and Durham Police Defendants conspired, agreed, and understood that the Duke Police Department would abandon its investigation of Mangum’s false claims, and cede the investigation to Sgt. Mark D. Gottlieb, a known rogue officer, who, upon information and belief, only weeks before, was taken off the patrol beat due to his abusive tactics with Duke students" (p. 33)

The lawsuit alleges that in particular Bob Steel, Chairman of the Board of Trustees, Brodhead, and the rest of the Crisis Management Team "directed the Duke Police Department not to intervene" (p. 42). Moreover, the lawsuit alleges that:

"Duke University Defendants, Ex-District Attorney Michael B. Nifong, and the City of Durham Defendants colluded to conceal from the public the fact that the Duke Police Department had the authority and obligation to initiate and conclude an investigation of Mangum’s false claims" (p. 33-34).

Contrast these two allegations with the following internationally publicized address from Duke President Richard Brodhead:

“To determine responsibility, we need to learn the full truth as quickly as possible. While I have urged and while I continue to urge everyone to cooperate with this inquiry to the fullest. Unavoidably, we have to look to the Durham Police to take the lead in the investigation. Duke doesn’t have the power to compel testimony from citizens of this city, and Duke lacks access to warrants, DNA records, and other confidential information. I have confidence in the authorities to find the truth and I have confidence that the authorities will take whatever legal steps are necessary in the best interests of this community.” (we should have a video clip of this within a few days)

SignificanceFor well over a year, this line of argument has been integral to the Duke administration's defense: that there was nothing it could do. If the allegations in this lawsuit are true, that would be a rather indefensible position, and moreover it would prove to be a rather malicious lie. If true, these allegations will prove that Brodhead, Steel, and the CMT were not merely guilty of failing to stand up for their students but directly responsible for putting the matter into the hands of a known corrupt investigator, Gottleib, who had a history of wildly and even violently abusing Duke students - a history readily familiar to those on the Crisis Management Team.

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